United States District Court, W.D. Washington, Seattle
ORDER ON GOVERNMENT'S EVIDENTIARY
S. Lasnik, United States District Judge
matter comes before the Court on the government's
“Motion to Admit Evidence of Defendant's Prior
Sexual Assault Under Rules 413 and 404(b)” (Dkt. #52)
and “Motion in Limine to Preclude Evidence or
Argument Concerning Penalties or Collateral Consequences of
Conviction” (Dkt. #74).
MOTION TO ADMIT EVIDENCE OF PRIOR SEXUAL ASSAULT
government asks the Court to admit evidence of an uncharged
2017 sexual assault allegation against defendant pursuant to
Federal Rules of Evidence 413 and 404(b). See Dkt
uncontested that defendant was a guest at the Grandover
Resort in Greensboro, North Carolina on July 23, 2017, at the
time of the allegation. From there, the parties' accounts
of the incident at issue diverge.
the government's perspective, a hotel housekeeper
(referred to as “L.S”) reported that defendant
sexually assaulted her late one evening as she cleaned the
men's locker room at the Resort. Dkt. #52 at 2. According
to L.S., defendant first asked her to come to his hotel room
and provided her with his room number. Id She states
that she refused, but defendant followed her into the locker
room, approached her, brushed up against her buttocks and
pressed his groin against her, at which point she felt his
erection. Id. at 2-3. When L.S. tried to get away,
defendant allegedly grabbed her arms, but she was able to
“br[eak] free from his grasp and call
security.” Id. at 3. A security officer
responded to the call and reviewed security footage, which
allegedly showed the defendant entering the men's locker
room. Id. Defendant initially denied that he was
near the locker room, but when the security guard showed him
the footage, he allegedly corrected himself while still
denying the sexual assault. Id. Hotel security
called the Greensboro Police Department, which asked
defendant to leave the hotel. Id. Defendant
allegedly refused to leave and locked his hotel room door.
Id. Security bypassed the lock and defendant was
escorted from the premises and permanently banned.
Id. L.S. never pressed charges. Id.
presents a different account of the 2017 incident. He states
that he was at the Grandover Resort on a business conference
when he took Tramadol, a prescription painkiller he used for
severe stomach pain. Dkt. #56 at 2 (citing Dkt. #56-1).
Defendant says he later attended a company event and consumed
several beers, “which interacted with the Tramadol and
left him feeling ‘very, very dizzy,'
‘completely [un]aware of what [was] going on,' and
ultimately led to [him] passing out without much recollection
of the events that evening.” Id. (citing Dkt.
#56-1 at 5-7). He alleges that he was very inebriated when he
saw a “lady” at the hotel and grabbed her to ask
her to take him to his room. Id. at 3 (quoting Dkt.
#56-1 at 5-6). Defendant said that she seemed scared, and he
thinks he might have been speaking in Farsi and
“wasn't completely aware” of what was going
on. Id. From there, he alleges that L.S. ran away
and it took him awhile to get to his room, where he fell
asleep. Id. Because he was asleep, he didn't
open the door when security came. Id. Defendant
emphasizes the contemporaneous incident report, which
contains no “allegation of sexual
assault.” Id. He also describes an interview
of the responding security officer, who thought defendant
seemed intoxicated because he smelled of alcohol and was
staggering slightly.” Id at 4. Finally, he
asserts that law enforcement's summary of L.S.'s
interview is misleading because (1) during the interview, she
repeatedly stated that defendant “brushed up against
her” but never described pushing, thrusting, or
intentionally forceful contact, (2) the summary omits
L.S.'s statements implying defendant never had a tight
grip on her arms, (3) the summary minimizes L.S.'s
statements regarding her perception of defendant's level
of intoxication, and (4) the summary omits L.S.'s three
statements indicating that defendant did not hurt her.
Id at 4-6.
Admissibility Under Rule 413
Rule of Evidence (“Rule”) 413 governs the
admission of evidence of similar crimes in cases involving
sexual assault. See Fed.R.Evid. 413. In relevant
part, the Rule provides, “[i]n a criminal case in which
a defendant is accused of sexual assault, the court may admit
evidence that the defendant committed any other sexual
assault.” Fed.R.Evid. 413(a). Under the Rule, sexual
assault includes “a crime under federal law or state
law” that involves “contact, without consent,
between any part of the defendant's body - or an object -
and another person's genitals or anus” or
“contact, without consent, between the defendant's
genitals or anus and any part of another person's
body.” Fed.R.Evid. 413(d). Rule 413 provides an
exception to the general ban on propensity evidence, allowing
courts to admit evidence of other sexual assaults committed
by a defendant to prove his propensity to commit the charged
sexual assault. See United States v. LeMay, 260 F.3d
1018, 1025-27 (9th Cir. 2001).
evaluating the admissibility of the proffered evidence, the
Court is mindful that Rule 413 “is not a blank check
entitling the government to introduce whatever evidence it
wishes, no matter how minimally relevant and potentially
devastating to the defendant.” LeMay, 260 F.3d
at 1022. First, pursuant to Rule 413, the proffered evidence
is admissible only if (1) the defendant is accused of an
offense of sexual assault, (2) the proffered evidence relates
to the commission of another offense of sexual assault, and
(3) the proffered evidence is relevant. See Doe ex rel.
Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1268 (9th Cir.
2000) (citation omitted). Here, defendant is accused of an
offense of sexual assault, namely, of sexually assaulting a
fellow passenger on a commercial airplane. Therefore, the
Court need only examine the second and third Glanzer
Court first assesses whether evidence of the 2017 allegation
is relevant. The government argues that the proffered
evidence is relevant to show that defendant (1)
“derives sexual gratification from attacking
strangers”; (2) “is a bold offender, attacking
his victims in public spaces”; (3) has “a
preference for the victims' gender, both of which were
women”; (4) has a “propensity to commit sexual
assaults away from his home, while on travel”; and (5)
“‘lacks the moral inhibitions' that would
prevent him from committing sexual misconduct.” Dkt.
#52 at 8 (citation omitted). Regardless, because the 2017
incident involves uncharged and contested conduct, to be
admissible under Rule 413 the proffered evidence must also be
relevant under Rule 104(b), the rule of conditional
relevance. See United States v. Norris, 428 F.3d
907, 913-14 (9th Cir. 2005). “When determining whether
there is sufficient evidence to satisfy Rule 104(b), the
court is not required to make a preliminary finding that the
government has proved the conditional fact.”
Id. (citing Huddleston v. United States,
485 U.S. 681, 689 (1988)). Rather, the court must examine all
of the evidence and determine “whether the jury could
reasonably find the conditional fact by a preponderance of
the evidence.” Id.
sexual assault may be proved in many ways, including with a
judgment of conviction, testimony of the victim, or the
defendant's own admission. See United States v.
Redlightning, 624 F.3d 1090, 1120 (9th Cir. 2010).
Although the Ninth Circuit does “not suggest that the
district courts may only introduce prior acts [of
sexual assault] for which a defendant has been tried and
found guilty, . . . the extent to which an act has been
proved is a factor that district courts may consider.”
LeMay, 260 F.3d at 1029. The Court “cannot be
expected to conduct a ‘trial within a trial' to
determine the veracity of the proffered evidence.”
McMahon v. Valenzuela, No. 2:14-CV-02085-CAS(AGRx),
2015 WL 7573620, at *4 (CD. Cal. Nov. 25, 2015) (quoting
Johnson v. Elk Lake School Dist, 283 F.3d 138, 152
(3d Cir. 2002)).
from a sexual assault victim may be sufficient for a jury to
find by preponderance of the evidence that an alleged prior
sexual assault occurred, see Dkt. #52 at 13; Dkt.
#58 at 8-9, but the cases the government relies on for this
proposition are distinguishable. Defendant not only points to
inconsistencies in the record evidence, he emphasizes that
L.S. “has not testified under oath, nor has she been
subjected to questioning or cross-examination by either
government or defense counsel.”
where the evidence underlying the uncharged, contested 2017
sexual assault allegation is inconsistent, and the parties
accounts of the incident vary drastically, the Court is
unwilling to admit the evidence based solely on the testimony
of L.S. Although the hotel's security guard provided some
corroboration to L.S.'s account, there are sufficient
gaps in the record that aspects of both parties'
characterizations are plausible. Compare LeMay, 260
F.3d at 1029 (finding evidence regarding the defendant's
prior abuse “highly reliable, ” in part because
“it was an inference based on proven facts and [the
defendant's] own admissions, not rumor, innuendo, or
prior uncharged acts capable of multiple
characterizations”) (emphasis added). Having
examined all of the evidence underlying the 2017 allegation,
the Court is not convinced that a jury could ...